STEWARD EX REL. SCHLUTER v. Schluter

819 N.E.2d 1, 352 Ill. App. 3d 1196, 289 Ill. Dec. 89, 2004 Ill. App. LEXIS 1387
CourtAppellate Court of Illinois
DecidedSeptember 30, 2004
Docket4-03-0749, 4-03-0877, 4-03-1055
StatusPublished
Cited by2 cases

This text of 819 N.E.2d 1 (STEWARD EX REL. SCHLUTER v. Schluter) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STEWARD EX REL. SCHLUTER v. Schluter, 819 N.E.2d 1, 352 Ill. App. 3d 1196, 289 Ill. Dec. 89, 2004 Ill. App. LEXIS 1387 (Ill. Ct. App. 2004).

Opinions

JUSTICE McCULLOUGH

delivered the opinion of the court:

This is a consolidated appeal from the entry of a plenary order of protection against respondent, Leslie Schluter. Respondent argues that the trial court erred when it (1) precluded him from calling his child’s counselor, Dr. Andrea Klein, to testify on his behalf; and (2) ordered him to reimburse Piatt County for fees paid to the domestic violence attorney representing petitioner, Koni Steward. We affirm.

On November 1, 2002, Steward, on behalf of the minor child, Kelsi Schluter, filed a petition for an emergency order of protection against respondent. Koni is respondent’s ex-wife and the mother of Kelsi. The petition alleged that respondent had physically abused Kelsi on several occasions by throwing a notebook at her, shoving his face into hers and yelling at her, shoving her up the stairs, and calling her names. At the time Koni filed the petition, Kelsi was living with respondent and had been in his custodial care since November 1998. After an ex parte hearing, the trial court issued an emergency order of protection and set a hearing for plenary order of protection for November 21, 2002.

On November 4, 2002, respondent filed a motion to reopen the cause and rehear the petition for an order of protection, and also filed a response to the petition for an order of protection. Prior to the hearing on respondent’s motion, Koni requested the appointment of a domestic violence attorney pursuant to Piatt County Administrative Order 97 — 1. The trial court appointed John Foltz as the domestic violence attorney and also appointed Suzanne Wells as guardian ad litem for Kelsi.

On November 5, 2002, respondent subpoenaed Kelsi’s mental health counselor, Klein, to testify in this case and to bring all notes of counseling with Kelsi. On November 19, 2002, Koni filed a motion to exclude the testimony of Klein, and the guardian ad litem filed a motion to quash the subpoena of Klein. Both the motion to exclude and the motion to quash were based upon a prior court order and stipulation agreement in the case of In re Marriage of Schluter, Nos. 97—D—78, 99—OP—26 (Cir. Ct. Piatt Co.). In that stipulation agreement, the parties agreed, in relevant part:

“Until further order of this court Kelsi Schluter shall be furnished with mental health counseling not less frequently than once per month by a counselor selected from among those providers authorized by the health care plan covering the child. The counselor shall report the progress and any concerns to the [g]uardian ad litem not less frequently than quarterly. The counselor selected may not be called as a witness by either parent to testify in any further proceeding or hearing in this or any other proceeding. Nothing in this paragraph shall be interpreted to prevent the [g]uardian ad litem from calling such counselor to testify in any proceeding that may be instituted by the [g]uardian ad litem or as otherwise mandated by law.”

Also attached to the motion to exclude was a letter from the guardian ad litem to Klein, which stated in part that the purpose of this provision in the stipulation agreement was “so that Kelsi could have a safe confidential place to discuss her concerns about either parent and neither parent could use this counseling in any further proceeding.” After hearing arguments from all parties, the trial court granted the motions, excluding Klein’s testimony and quashing the subpoena.

After the trial court barred Klein’s testimony, respondent provided an offer of proof with regard to her testimony. In that offer of proof, respondent stated that Klein would have testified that Kelsi’s demeanor was inconsistent with her statements about the abuse. He stated that Klein would have testified that her opinion as a psychotherapist and child counselor was that Kelsi had not been abused or treated in the manner she claimed.

The trial court heard testimony on November 22, 2002; January 27, 2003; February 5, 2003; February 6, 2003; February 27, 2003; and February 28, 2003. The court entered extensions of the emergency order of protection on November 22, 2002; February 6, 2003; February 28, 2003; and March 5, 2003.

On April 28, 2003, the trial court approved, over objection, the fees filed by the domestic violence attorney in the total sum of $12,435.68 and by the guardian ad litem in the sum of $6,071.83. The court directed the county treasurer to pay the fees. On July 29, 2003, the court signed the plenary order of protection. On August 28, 2003, respondent filed his notice of appeal from the plenary order of protection.

On September 10, 2003, the trial court approved another $945 in fees for the domestic violence attorney and appointed him to continue to represent Koni on appeal. The court then held a hearing on the apportionment of the fees of both the guardian ad litem and the domestic violence attorney. The court ordered both parties to reimburse the county for the fees of the guardian ad litem, with each paying half. The court also ordered that respondent reimburse the county for two-thirds of the domestic violence attorney’s fees and Koni reimburse the county for one-third of the fees. On October 8, 2003, respondent filed a notice of appeal regarding this issue.

On November 7, 2003, the trial court entered a judgment in favor of Piatt County and against respondent and ordered him to reimburse the county the sum of $11,955 for domestic violence attorney fees and guardian ad litem fees. The court entered the order nunc pro tunc September 10, 2003. Respondent appealed, and on respondent’s motion, this court consolidated all of respondent’s appeals in this case.

On appeal, respondent argues that the trial court erred by (1) excluding the testimony of Kelsi’s counselor, Klein, and (2) ordering respondent to reimburse Piatt County for the domestic violence attorney fees. We affirm.

Respondent first contends that the trial court erred by precluding him from calling Kelsi’s counselor, Klein, to testify at the hearings for the plenary order of protection. The admissibility of evidence falls within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. Mowen v. Holland, 336 Ill. App. 3d 368, 372, 783 N.E.2d 180, 183 (2003). Here, the court noted a 1999 court-approved stipulation agreement between the parties that required Kelsi to attend counseling sessions and provided as follows:

“The counselor selected may not be called as a witness by either parent to testify in any further proceeding or hearing in this or any other proceeding.”

The effect of the stipulation, if enforced, would bar either parent from calling Kelsi’s counselor as a witness in any proceeding.

Parties are generally bound by their stipulations unless such stipulations are shown to be unreasonable, the result of fraud, or violative of public policy. In re Marriage of Sanborn, 78 Ill. App. 3d 146, 149, 396 N.E.2d 1192, 1195 (1979). However, we note that the trial court is not bound by spousal agreements made in marital dissolution proceedings providing for the support, custody, and visitation of the children. In re Marriage of Smith, 347 Ill. App.

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Related

Campuzano v. Pertiz
875 N.E.2d 1234 (Appellate Court of Illinois, 2007)
STEWARD EX REL. SCHLUTER v. Schluter
819 N.E.2d 1 (Appellate Court of Illinois, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
819 N.E.2d 1, 352 Ill. App. 3d 1196, 289 Ill. Dec. 89, 2004 Ill. App. LEXIS 1387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steward-ex-rel-schluter-v-schluter-illappct-2004.